In a decision released on May 19, 2017, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit invalidated the drone registration rule (“the Registration Rule”) issued by the Federal Aviation Administration (FAA) in 2015.[1] This action dramatically alters the regulatory landscape for unmanned aerial vehicles used for recreational purposes. The D.C. Circuit decision may force the FAA to modify its approach to drone registration and may encourage Congress to take action on this subject.[2]

Aerial drones are now widespread in recreational and commercial use. It has been estimated that approximately 2.3 million recreational drones will be acquired in 2017 in the United States. Those estimates also suggest that more than 13 million drones will be purchased in the U.S. by the end of 2020. This rapidly increasing recreational use of drones, combined with significantly expanding commercial use, caused the FAA to become increasingly concerned that improperly supervised drone use could be a threat to civil aviation. Highly publicized incidents involving drones and manned aircraft led the FAA to address aviation safety issues associated with widespread drone use.[3]

In response to the safety concerns, the FAA issued its Registration Rule in 2015. The Registration Rule required that all recreational drone users in the United States register their vehicles with the FAA. Drones were registered online and there was a required payment of a five-dollar fee.[4] Registration for recreational drone users was effective for a period of three years. Upon registration, drone users received registration numbers to be marked on their drones.[5] The identification numbers were also archived with drone owner information in an FAA database. It is estimated that approximately 760,000 recreational users registered approximately 1.6 million recreational drones with the FAA in the time since the Registration Rule became effective.

In its ruling in Taylor v. FAA, the D.C. Circuit concluded that the FAA did not have the authority to issue the Registration Rule. The Court based its determination on its interpretation of the 2012 FAA Modernization Act legislation. Section 336 (a) of the Act asserts that the FAA can not regulate model aircraft operations and use. The D.C. Circuit identifies recreational drones to be model aircraft and thus beyond the regulatory jurisdiction of the FAA.

The aerial drone community appears to be divided on the Court’s ruling. Representatives of model aircraft hobbyists, such as the Academy of Model Aeronautics (AMA), are generally highly supportive of the Court’s action.[6] In its statement on the decision, the AMA indicated that it was encouraged by the court action as registration posed an unreasonable burden on recreational drone use.[7] In contrast, representatives of commercial drone operators such as the Association for Unmanned Vehicle Systems International (AUVSI) question the decision. In its statement on the court action, the AUVSI noted that it was “disappointed” by the ruling.[8]

This case reflects a longstanding debate in the aeronautics community as to the appropriate level of oversight necessary for safety in the context of recreational model aircraft use. That debate has become substantially more complex with the development of increasingly capable small aerial drones readily available for recreational users. The ruling of the D.C. Circuit seems to substantially enhance the policy position of the model aircraft hobbyists with regard to recreational drone use.

This decision appears to undermine significantly the ability of the FAA to regulate recreational drone use even beyond basic vehicle registration. The ruling seems to call into question other aspects of FAA oversight of recreational drone operations, such as implementation and enforcement of “no-fly zones,” specific geographic locations (e.g., airports and public event sites) where recreational drone use is prohibited. The AUVSI seemed to recognize this issue in its statement when it indicated that it planned to work with Congress to address the need for effective oversight of recreational drone operations. If the FAA Modernization and Reform Act presents a complete bar to FAA oversight of recreational drone use as the D.C. Circuit suggests, then Congressional action will likely be required if any regulatory oversight of recreational drone use is to be established.

Other aspects of regulatory oversight for drone use are also currently in litigation.[9] Of these additional cases, perhaps the most significant is EPIC v FAA II, a case also in the D.C. Circuit in which issues associated with regulation of drone use to protect personal privacy are in dispute.[10] In this case, the Electronic Privacy Information Center (EPIC) challenged the FAA’s alleged failure to consider properly potential threats to personal privacy and civil liberties posed by use of aerial drones.

EPIC and numerous other parties previously petitioned the FAA requesting that the agency implement a rulemaking proceeding to consider the potential impact on personal privacy and civil liberties of widespread aerial drone use. Ultimately, the FAA denied the request, arguing in part that the issues of privacy and civil liberties in the context of drone use were currently under consideration in other existing U.S. government drone policy development proceedings and that those subjects were not directly relevant to the FAA’s primary focus on aviation safety. EPIC challenged the FAA’s denial of the petition for rulemaking on privacy and civil liberties, and that case is currently pending at the D.C. Circuit.

The EPIC case highlights another aspect of the evolving framework of federal drone regulation. Privacy and civil liberties concerns associated with use of aerial drones now receive substantial attention from policymakers and the public. The extent to which those concerns could influence the structure of federal regulatory oversight for drones and their operations remains to be seen. It seems likely, however, that court cases such as the EPIC case may help to influence the form and structure of drone regulation associated with personal privacy and civil liberties.

Federal regulatory oversight of aerial drones is currently being influenced by cases such as Taylor and EPIC II. The current regulatory framework applicable to drones is likely to change dramatically in the near future. Any person seeking to use drones or monitoring policy development should expect significant regulatory adjustments by the FAA and increased attention from Congress.